BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
45. Moreover, the code of practice issued by the Secretary of State was
not binding, allowing departure from it for good reason. Worse still, the
daily work of the analysts was governed by “below-the-waterline
arrangements”, which were not available to the public, not even in a cursory
fashion or redacted manner137. This administrative leeway of the
intercepting authority defeated the purpose of the legality principle,
according to which the rules governing bulk interception must have a basis
in domestic law and that this law must be accessible and foreseeable as to its
effects.
46. The regulatory weakness of the system was further aggravated by the
status of the Interception of Communications Commissioner
(IC Commissioner), who was not an independent authority and provided for
no effective oversight of the implementation of the interception warrant138.
As the 2015 ISC Report put it, “while the two Commissioners are former
judges, in their roles as Commissioners they are operating outside the
official judicial framework”, concluding that “a number of these
responsibilities are currently being carried out on a non-statutory basis. This
is unsatisfactory and inappropriate”139. This is not the worst aspect of the
IC Commissioner’s legal status. As a matter of law, the Prime Minister
appointed the IC Commissioner, who reported to him or her and was
dependent on the staff provided by the Secretary of State140. In addition, it
was a part-time job and the IC Commissioner could be dismissed by the
Prime Minister at any moment141. This status was evidently not compatible
with the independence required for effective supervision of the operation of
the section 8(4) regime. In short, the Commissioners were not
“institutionally, operationally, and financially independent from the
institutions they [were] mandated to oversee”, as required by the Tshwane
principles142.
47. Even assuming, for the sake of the discussion, that the
Commissioner’s oversight in the United Kingdom was independent, it was
not effective, for the simple reason that, when confronted with a serious
error, the Commissioner would only have the power to make a report to the
Paragraph 33 of this judgment.
See § 347 of the Chamber judgment, and § 26 of the separate opinion of Judge Koskelo,
joined by Judge Turković, which points to the fact that the UK system is in fact behind the
German system of safeguards existing at the time of Klass and Others and Weber and
Saravia.
139 Regrettably, this passage of the 2015 ISC report, which is referred to in paragraph 142
of the judgment, was overlooked by the majority.
140 Paragraph 57 of RIPA 2000.
141 The critique made by the applicant during the Grand Chamber hearing on 10 July 2019
is legitimate: a single retired judge working part-time and with a small secretariat and
conducting a modest sample analysis “cannot hope to exercise meaningful oversight”.
142 On these principles and their role within the Council of Europe see my separate opinion
in Szábo and Vissy, cited above.
137
138
194